Willful Infringement After Seagate: How the Willfulness Standard Has Changed and What Attorneys Should Know About It

In In re Seagate Technology, LLC, the Court of Appeals for the Federal Circuit changed the standard for willful patent infringement from one akin to negligence, to one more aligned with recklessness. While the general standard is set forth in the decision, the Seagate Court stated that it would leave the development of the new standard’s meaning to future cases. This Article surveys cases applying Seagate to determine the meaning of this novel standard, and explores what evidence courts have considered relevant to the willfulness inquiry. This Article also discusses how Seagate has affected the desirability of opinions of counsel and clearance searches, and concludes with recommendations for practicing attorneys about how to avoid willfulness charges.

Willful Infringement After Seagate: How the Willfulness Standard Has Changed and What Attorneys Should Know About It

In In re Seagate Technology, LLC, the Court of Appeals for the Federal Circuit changed the standard for willful patent infringement from one akin to negligence, to one more aligned with recklessness. While the general standard is set forth in the decision, the Seagate Court stated that it would leave the development of the new standard’s meaning to future cases. This Article surveys cases applying Seagate to determine the meaning of this novel standard, and explores what evidence courts have considered relevant to the willfulness inquiry. This Article also discusses how Seagate has affected the desirability of opinions of counsel and clearance searches, and concludes with recommendations for practicing attorneys about how to avoid willfulness charges.